Missing person investigations can span several years, or even across decades. In the time between a person’s disappearance and discovery, missing individuals often have real property or other important assets that require management and are left unprotected. Asking the court to appoint a conservator on behalf of the missing person provides several benefits for missing persons and their families. Conservators can protect the missing person’s property, assist in coordinating the missing person’s investigation, and, if necessary, request the missing person be legally declared deceased.
What Families Need To Know
For the family of a missing person, time is of the essence, and the situation may seem overwhelming. Most people do not know what to do when a family member or loved one goes missing and cannot be found. Oftentimes, the missing person is named on bank accounts, mortgages, or other essential documents, and may even be the family’s main provider of income. It may be difficult or impossible to pay bills, access financial information, or manage the missing person’s property in any meaningful way. Because of these and other concerns, one of the most advantageous actions a family can take is to have a conservator appointed by the court on behalf of the missing person.
A conservatorship is a situation where one person (the conservator) manages another person’s property and assets subject to fiduciary duties and judicial supervision. Arizona law specifically contemplates the need for a conservator in circumstances where a person is missing and has property in need of protection. A.R.S. § 14-5401(2)(a). Under the law, if a person is unable to manage their estate and affairs because of a “disappearance,” the court may appoint a conservator to act on their behalf. Id.
Legal Power of An Appointed Conservator
Once a conservator is appointed, the conservator has the legal power to take all necessary steps needed to manage and protect the missing person’s property and assets.
Conservatorships are especially effective in missing person’s situations because a conservator has access to important evidence that may help uncover the missing person’s location. A conservator can monitor the missing person’s bank accounts or other accounts for any activity that may provide evidence of the missing individual’s location. Financial transactions before and after a person’s disappearance is important evidence necessary in nearly all investigations.
Missing Persons Property
After a conservator is appointed, complicated issues regarding the missing person’s property or assets may continue to arise. Real property may need to be restricted or sold, accounts and bills need to be settled, and the missing person investigation itself needs to be managed and monitored. Also, because the missing person is under a conservatorship, the conservator’s actions are subject to judicial oversight and court intervention.
In addition to protecting the missing person’s property and monitoring assets, a conservator also has the power to allocate resources from the missing person’s estate to investigate the disappearance. In particular, a conservator can use the missing person’s assets to fund a private investigation to supplement any governmental investigation that may or may not be taking place.
Benefits To Independent Investigations
Independent investigations have a two-fold effect in the context of missing person’s situations. First and foremost, an independent investigation provides additional resources that supplement the government’s investigation and provides for the best chance to locate the missing person. Unlike traditional law enforcement, private investigators are not subject to the same procedural hurdles and carry significantly lesser caseloads. Qualified independent investigators are experienced and have skills that complement the work done by law enforcement. Having the ability to access additional resources for a private investigation can greatly increase the scope and effectiveness of the entire investigation.
The second benefit that an independent investigation provides is, if the missing person cannot be found and is believed to be dead, the private investigation provides the factual background to bring a determination of death claim before the court.
In the event a person goes missing and is ultimately believed to be dead, a spouse or other family member may ask the court to have the person declared legally deceased. Although at first this course of action may seem counter-intuitive, having the court declare an individual deceased provides significant benefits to the missing person’s family, including social security benefits and the ability to probate the missing person’s estate.
In Arizona (and other states have similar statutes), there are two main ways a missing person may be determined legally dead. First, if an individual is missing for over 5 years, and diligent search has been made, there is a presumption that the individual is deceased. A.R.S. § 14-1107(5). However, 5 years is a long time to wait, and Arizona law also enables a determination of death to be found if the missing person’s death can be shown by clear and convincing evidence, a high legal standard. A.R.S. § 14-1107(4). Here, the private investigator’s investigation and reports provide valuable evidence to reach the legal standard required for an individual to be declared dead by the court.
Why It’s Important To Appoint A Conservator
Appointing a conservator for a missing person is an important step that provides several benefits. Once a conservator is appointed, property can be protected, and assets can be allocated to fund an independent investigation to provide the best chance of locating the missing person.
The appointment of a conservator, the duties and responsibilities of a conservator, and managing a missing person’s investigation is a complicated situation. Hiring an attorney experienced in handling missing person’s investigations, and conservatorship law to assist throughout the process can help assist anyone navigate through this challenging time.
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